G.R. No. 168338             February 15, 2008 3.

On June 8, 2005, respondent Department of Justice

(DOJ) Secretary Raul Gonzales warned reporters that
FRANCISCO CHAVEZ,  those who had copies of the compact disc (CD) and
petitioner, those broadcasting or publishing its contents could be
vs. held liable under the Anti-Wiretapping Act. These
RAUL M. GONZALES, in his capacity as the Secretary of persons included Secretary Bunye and Atty. Paguia. He
the Department of Justice; and NATIONAL also stated that persons possessing or airing said tapes
TELECOMMUNICATIONS COMMISSION were committing a continuing offense, subject to arrest
(NTC), respondents. by anybody who had personal knowledge if the crime
was committed or was being committed in their
DECISION presence.9

PUNO, C.J.: 4. On June 9, 2005, in another press briefing, Secretary

Gonzales ordered the National Bureau of Investigation
A. Precis (NBI) to go after media organizations "found to have
caused the spread, the playing and the printing of the
In this jurisdiction, it is established that freedom of the contents of a tape" of an alleged wiretapped
press is crucial and so inextricably woven into the right conversation involving the President about fixing votes
to free speech and free expression, that any attempt to in the 2004 national elections. Gonzales said that he
restrict it must be met with an examination so critical was going to start with Inq7.net, a joint venture
that only a danger that is clear and present would be between the Philippine Daily Inquirer and
allowed to curtail it. GMA7 television network, because by the very nature
of the Internet medium, it was able to disseminate the
Indeed, we have not wavered in the duty to uphold this contents of the tape more widely. He then expressed
cherished freedom. We have struck down laws and his intention of inviting the editors and managers of
issuances meant to curtail this right, as in Adiong v. Inq7.net and GMA7 to a probe, and supposedly
COMELEC,1 Burgos v. Chief of Staff,2 Social Weather declared, "I [have] asked the NBI to conduct a tactical
Stations v. COMELEC,3 and Bayan v. Executive Secretary interrogation of all concerned." 10
Ermita.4 When on its face, it is clear that a governmental
act is nothing more than a naked means to prevent the 5. On June 11, 2005, the NTC issued this press release: 11
free exercise of speech, it must be nullified.
NTC GIVES FAIR WARNING TO RADIO AND
B. The Facts TELEVISION OWNERS/OPERATORS TO OBSERVE
ANTI-WIRETAPPING LAW AND PERTINENT
1. The case originates from events that occurred a year CIRCULARS ON PROGRAM STANDARDS
after the 2004 national and local elections. On June 5,
2005, Press Secretary Ignacio Bunye told reporters that xxx xxx xxx
the opposition was planning to destabilize the
administration by releasing an audiotape of a mobile Taking into consideration the country’s unusual
phone conversation allegedly between the President of situation, and in order not to unnecessarily
the Philippines, Gloria Macapagal Arroyo, and a high- aggravate the same, the NTC warns all radio
ranking official of the Commission on Elections stations and television network
(COMELEC). The conversation was audiotaped allegedly owners/operators that the conditions of the
through wire-tapping.5 Later, in a Malacañang press authorization and permits issued to them by
briefing, Secretary Bunye produced two versions of the Government like the Provisional Authority
tape, one supposedly the complete version, and the and/or Certificate of Authority explicitly
other, a spliced, "doctored" or altered version, which provides that said companies shall not use
would suggest that the President had instructed the [their] stations for the broadcasting or
COMELEC official to manipulate the election results in telecasting of false information or willful
the President’s favor. 6 It seems that Secretary Bunye misrepresentation. Relative thereto, it has come
admitted that the voice was that of President Arroyo, to the attention of the [NTC] that certain
but subsequently made a retraction. 7 personalities are in possession of alleged taped
conversations which they claim involve the
2. On June 7, 2005, former counsel of deposed President of the Philippines and a
President Joseph Estrada, Atty. Alan Paguia, Commissioner of the COMELEC regarding
subsequently released an alleged authentic tape supposed violation of election laws.
recording of the wiretap. Included in the tapes were
purported conversations of the President, the First These personalities have admitted that the
Gentleman Jose Miguel Arroyo, COMELEC taped conversations are products of illegal
Commissioner Garcillano, and the late Senator Barbers.8 wiretapping operations.

Page 1 of 11
 Considering that these taped conversations  NTC respects and will not hinder freedom of the
have not been duly authenticated nor could it press and the right to information on matters of
be said at this time that the tapes contain an public concern. KBP & its members have always
accurate or truthful representation of what was been committed to the exercise of press
recorded therein, it is the position of the [NTC] freedom with high sense of responsibility and
that the continuous airing or broadcast of the discerning judgment of fairness and honesty.
said taped conversations by radio and television  NTC did not issue any MC [Memorandum
stations is a continuing violation of the Anti- Circular] or Order constituting a restraint of
Wiretapping Law and the conditions of the press freedom or censorship. The NTC further
Provisional Authority and/or Certificate of denies and does not intend to limit or restrict
Authority issued to these radio and television the interview of members of the opposition or
stations. It has been subsequently established free expression of views.
that the said tapes are false and/or fraudulent  What is being asked by NTC is that the exercise
after a prosecution or appropriate investigation, of press freedom [be] done responsibly.
the concerned radio and television companies  KBP has program standards that KBP members
are hereby warned that their broadcast/airing will observe in the treatment of news and
of such false information and/or willful public affairs programs. These include
misrepresentation shall be just cause for the verification of sources, non-airing of materials
suspension, revocation and/or cancellation of that would constitute inciting to sedition and/or
the licenses or authorizations issued to the rebellion.
said companies.  The KBP Codes also require that no false
statement or willful misrepresentation is made
In addition to the above, the [NTC] reiterates in the treatment of news or commentaries.
the pertinent NTC circulars on program  The supposed wiretapped tapes should be
standards to be observed by radio and treated with sensitivity and handled responsibly
television stations. NTC Memorandum Circular giving due consideration to the process being
111-12-85 explicitly states, among others, that undertaken to verify and validate the
"all radio broadcasting and television stations authenticity and actual content of the same."
shall, during any broadcast or telecast, cut off
from the air the speech, play, act or scene or C. The Petition
other matters being broadcast or telecast the
tendency thereof is to disseminate false Petitioner Chavez filed a petition under Rule 65 of the
information or such other willful Rules of Court against respondents Secretary Gonzales
misrepresentation, or to propose and/or incite and the NTC, "praying for the issuance of the writs
treason, rebellion or sedition." The foregoing of certiorari and prohibition, as extraordinary legal
directive had been reiterated by NTC remedies, to annul void proceedings, and to prevent the
Memorandum Circular No. 22-89, which, in unlawful, unconstitutional and oppressive exercise of
addition thereto, prohibited radio, broadcasting authority by the respondents."13
and television stations from using their stations
to broadcast or telecast any speech, language Alleging that the acts of respondents are violations of
or scene disseminating false information or the freedom on expression and of the press, and the
willful misrepresentation, or inciting, right of the people to information on matters of public
encouraging or assisting in subversive or concern,14 petitioner specifically asked this Court:
treasonable acts.
[F]or [the] nullification of acts, issuances, and
The [NTC] will not hesitate, after observing the orders of respondents committed or made since
requirements of due process, to apply with full June 6, 2005 until the present that curtail the
force the provisions of said Circulars and their public’s rights to freedom of expression and of
accompanying sanctions on erring radio and the press, and to information on matters of
television stations and their owners/operators. public concern specifically in relation to
information regarding the controversial taped
6. On June 14, 2005, NTC held a dialogue with the conversion of President Arroyo and for
Board of Directors of the Kapisanan ng mga Brodkaster prohibition of the further commission of such
sa Pilipinas (KBP).  NTC allegedly assured the KBP that acts, and making of such issuances, and orders
the press release did not violate the constitutional by respondents. 15
freedom of speech, of expression, and of the press, and
the right to information. Accordingly, NTC and KBP Respondents16 denied that the acts transgress the
issued a Joint Press Statement which states, among Constitution, and questioned petitioner’s legal standing
others, that: 12 to file the petition. Among the arguments they raised as
to the validity of the "fair warning" issued by
respondent NTC, is that broadcast media enjoy lesser

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constitutional guarantees compared to print media, and opportunity: (1) to distill the essence of freedom of
the warning was issued pursuant to the NTC’s mandate speech and of the press now beclouded by the
to regulate the telecommunications industry. 17 It was vagaries of motherhood statements; (2) to clarify the
also stressed that "most of the [television] and radio types of speeches and their differing restraints allowed
stations continue, even to this date, to air the tapes, but by law; (3) to discuss the core concepts of prior
of late within the parameters agreed upon between the restraint, content-neutral and content-based
NTC and KBP." 18 regulations and their constitutional standard of
review; (4) to examine the historical difference in the
D. The Procedural Threshold: Legal Standing treatment of restraints between print and broadcast
media and stress the standard of review governing
To be sure, the circumstances of this case make the both; and (5) to call attention to the ongoing blurring
constitutional challenge peculiar. Petitioner, who is not of the lines of distinction between print and broadcast
a member of the broadcast media, prays that we strike media.
down the acts and statements made by respondents as
violations of the right to free speech, free expression E. Re-examining The law on freedom of speech,
and a free press. For another, the recipients of the press of expression and of the press
statements have not come forward—neither
intervening nor joining petitioner in this action. Indeed, No law shall be passed abridging the freedom
as a group, they issued a joint statement with of speech, of expression, or of the press, or the
respondent NTC that does not complain about right of the people peaceably to assemble and
restraints on freedom of the press. petition the government for redress of
grievances.24
It would seem, then, that petitioner has not met the
requisite legal standing, having failed to allege "such a Freedom of expression has gained recognition as a
personal stake in the outcome of the controversy as to fundamental principle of every democratic government,
assure that concrete adverseness which sharpens the and given a preferred right that stands on a higher level
presentation of issues upon which the Court so largely than substantive economic freedom or other liberties.
depends for illumination of difficult constitutional The cognate rights codified by Article III, Section 4 of the
questions." 19 Constitution, copied almost verbatim from the First
Amendment of the U.S. Bill of Rights,25 were considered
But as early as half a century ago, we have already held the necessary consequence of republican institutions
that where serious constitutional questions are and the complement of free speech.26 This preferred
involved, "the transcendental importance to the public status of free speech has also been codified at the
of these cases demands that they be settled promptly international level, its recognition now enshrined in
and definitely, brushing aside if we must, technicalities international law as a customary norm that binds all
of procedure." 20 Subsequently, this Court has nations.27
repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving In the Philippines, the primacy and high esteem
serious legal questions that greatly impact on public accorded freedom of expression is a fundamental
interest,21 in keeping with the Court's duty under the postulate of our constitutional system. 28 This right was
1987 Constitution to determine whether or not other elevated to constitutional status in the 1935, the 1973
branches of government have kept themselves within and the 1987 Constitutions, reflecting our own lesson of
the limits of the Constitution and the laws and that they history, both political and legal, that freedom of speech
have not abused the discretion given to them. is an indispensable condition for nearly every other
form of freedom.29 Moreover, our history shows that
Thus, in line with the liberal policy of this Court on locus the struggle to protect the freedom of speech,
standi when a case involves an issue of overarching expression and the press was, at bottom, the struggle
significance to our society,22 we therefore brush aside for the indispensable preconditions for the exercise of
technicalities of procedure and take cognizance of this other freedoms.30 For it is only when the people have
petition,23 seeing as it involves a challenge to the most unbridled access to information and the press that they
exalted of all the civil rights, the freedom of will be capable of rendering enlightened judgments. In
expression. The petition raises other issues like the the oft-quoted words of Thomas Jefferson, we cannot
extent of the right to information of the public. It is both be free and ignorant.
fundamental, however, that we need not address all
issues but only the most decisive one which in the case E.1. Abstraction of Free Speech
at bar is whether the acts of the respondents abridge
freedom of speech and of the press. Surrounding the freedom of speech clause are various
concepts that we have adopted as part and parcel of
But aside from the primordial issue of determining our own Bill of Rights provision on this basic
whether free speech and freedom of the press have freedom.31 What is embraced under this provision was
been infringed, the case at bar also gives this Court the

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discussed exhaustively by the Court in Gonzales v. ends, inasmuch as the Constitution's basic guarantee of
Commission on Elections, 32 in which it was held: freedom to advocate ideas is not confined to the
expression of ideas that are conventional or shared by a
…At the very least, free speech and free press majority.
may be identified with the liberty to discuss
publicly and truthfully any matter of public The constitutional protection is not limited to the
interest without censorship and punishment. exposition of ideas. The protection afforded free speech
There is to be no previous restraint on the extends to speech or publications that are entertaining
communication of views or subsequent liability as well as instructive or informative. Specifically,
whether in libel suits, prosecution for sedition, in Eastern Broadcasting Corporation (DYRE) v.
or action for damages, or contempt proceedings Dans,41 this Court stated that all forms of media,
unless there be a clear and present danger of whether print or broadcast, are entitled to the broad
substantive evil that Congress has a right to protection of the clause on freedom of speech and of
prevent. 33 expression.

Gonzales further explained that the vital need of a While all forms of communication are entitled to the
constitutional democracy for freedom of expression is broad protection of freedom of expression clause, the
undeniable, whether as a means of assuring individual freedom of film, television and radio broadcasting is
self-fulfillment; of attaining the truth; of assuring somewhat lesser in scope than the freedom accorded
participation by the people in social, including political, to newspapers and other print media, as will be
decision-making; and of maintaining the balance subsequently discussed.
between stability and change.34 As early as the 1920s,
the trend as reflected in Philippine and American E.2. Differentiation: The Limits & Restraints of Free
decisions was to recognize the broadest scope and Speech
assure the widest latitude for this constitutional
guarantee. The trend represents a profound From the language of the specific constitutional
commitment to the principle that debate on public provision, it would appear that the right to free speech
issue should be uninhibited, robust, and wide-open. 35 and a free press is not susceptible of any limitation. But
the realities of life in a complex society preclude a literal
Freedom of speech and of the press means something interpretation of the provision prohibiting the passage
more than the right to approve existing political beliefs of a law that would abridge such freedom. For freedom
or economic arrangements, to lend support to official of expression is not an absolute, 42 nor is it an
measures, and to take refuge in the existing climate of "unbridled license that gives immunity for every
opinion on any matter of public consequence.36 When possible use of language and prevents the punishment
atrophied, the right becomes meaningless.37 The right of those who abuse this freedom."
belongs as well -- if not more – to those who question,
who do not conform, who differ.38 The ideas that may Thus, all speech are not treated the same. Some types
be expressed under this freedom are confined not only of speech may be subjected to some regulation by the
to those that are conventional or acceptable to the State under its pervasive police power, in order that it
majority. To be truly meaningful, freedom of speech may not be injurious to the equal right of others or
and of the press should allow and even encourage the those of the community or society.43 The difference in
articulation of the unorthodox view, though it be hostile treatment is expected because the relevant interests of
to or derided by others; or though such view "induces a one type of speech, e.g., political speech, may vary from
condition of unrest, creates dissatisfaction with those of another, e.g., obscene speech. Distinctions
conditions as they are, or even stirs people to have therefore been made in the treatment, analysis,
anger."39 To paraphrase Justice Holmes, it is freedom for and evaluation of the permissible scope of restrictions
the thought that we hate, no less than for the thought on various categories of speech. 44 We have ruled, for
that agrees with us. 40 example, that in our jurisdiction slander or libel, lewd
and obscene speech, as well as "fighting words" are not
The scope of freedom of expression is so broad that it entitled to constitutional protection and may be
extends protection to nearly all forms of penalized.45
communication. It protects speech, print and assembly
regarding secular as well as political causes, and is not Moreover, the techniques of reviewing alleged
confined to any particular field of human interest. The restrictions on speech (overbreadth, vagueness, and so
protection covers myriad matters of public interest or on) have been applied differently to each category,
concern embracing all issues, about which information either consciously or unconsciously. 46 A study of free
is needed or appropriate, so as to enable members of speech jurisprudence—whether here or abroad—will
society to cope with the exigencies of their period. The reveal that courts have developed different tests as to
constitutional protection assures the broadest possible specific types or categories of speech in concrete
exercise of free speech and free press for religious, situations; i.e., subversive speech; obscene speech; the
political, economic, scientific, news, or informational speech of the broadcast media and of the traditional

Page 4 of 11
print media; libelous speech; speech affecting press benefits from certain ancillary rights. The
associational rights; speech before hostile audiences; productions of writers are classified as intellectual and
symbolic speech; speech that affects the right to a fair proprietary. Persons who interfere or defeat the
trial; and speech associated with rights of assembly and freedom to write for the press or to maintain a
petition. 47 periodical publication are liable for damages, be they
private individuals or public officials.
Generally, restraints on freedom of speech and
expression are evaluated by either or a combination of E.4. Anatomy of Restrictions: Prior Restraint, Content-
three tests, i.e., (a) the dangerous tendency Neutral and Content-Based Regulations
doctrine which permits limitations on speech once a
rational connection has been established between the Philippine jurisprudence, even as early as the period
speech restrained and the danger contemplated; 48 (b) under the 1935 Constitution, has recognized four
the balancing of interests tests, used as a standard aspects of freedom of the press. These are (1) freedom
when courts need to balance conflicting social values from prior restraint; (2) freedom from punishment
and individual interests, and requires a conscious and subsequent to publication; 53 (3) freedom of access to
detailed consideration of the interplay of interests information; 54 and (4) freedom of circulation.55
observable in a given situation of type of
situation; 49 and (c) the clear and present danger Considering that petitioner has argued that
rule which rests on the premise that speech may be respondents’ press statement constitutes a form of
restrained because there is substantial danger that the impermissible prior restraint, a closer scrutiny of this
speech will likely lead to an evil the government has a principle is in order, as well as its sub-specie of content-
right to prevent. This rule requires that the evil based (as distinguished from content-neutral)
consequences sought to be prevented must be regulations.
substantive, "extremely serious and the degree of
imminence extremely high." 50 At this point, it should be noted that respondents in this
case deny that their acts constitute prior restraints. This
As articulated in our jurisprudence, we have applied presents a unique tinge to the present challenge,
either the dangerous tendency doctrine or clear and considering that the cases in our jurisdiction involving
present danger test to resolve free speech challenges. prior restrictions on speech never had any issue of
More recently, we have concluded that we have whether the governmental act or
generally adhered to the clear and present danger issuance actually constituted prior restraint. Rather, the
test. 51 determinations were always about whether the
restraint was justified by the Constitution.
E.3. In Focus: Freedom of the Press
Be that as it may, the determination in every case of
Much has been written on the philosophical basis of whether there is an impermissible restraint on the
press freedom as part of the larger right of free freedom of speech has always been based on the
discussion and expression. Its practical importance, circumstances of each case, including the nature of the
though, is more easily grasped. It is the chief source of restraint. And in its application in our jurisdiction, the
information on current affairs. It is the most pervasive parameters of this principle have been etched on a
and perhaps most powerful vehicle of opinion on public case-to-case basis, always tested by scrutinizing the
questions. It is the instrument by which citizens keep governmental issuance or act against the
their government informed of their needs, their circumstances in which they operate, and then
aspirations and their grievances. It is the sharpest determining the appropriate test with which to
weapon in the fight to keep government responsible evaluate.
and efficient. Without a vigilant press, the mistakes of
every administration would go uncorrected and its Prior restraint refers to official governmental
abuses unexposed. As Justice Malcolm wrote in United restrictions on the press or other forms of expression in
States v. Bustos:52 advance of actual publication or
56
dissemination.  Freedom from prior restraint is largely
The interest of society and the maintenance of good freedom from government censorship of publications,
government demand a full discussion of public affairs. whatever the form of censorship, and regardless of
Complete liberty to comment on the conduct of public whether it is wielded by the executive, legislative or
men is a scalpel in the case of free speech. The sharp judicial branch of the government. Thus, it precludes
incision of its probe relieves the abscesses of governmental acts that required approval of a proposal
officialdom. Men in public life may suffer under a hostile to publish; licensing or permits as prerequisites to
and unjust accusation; the wound can be assuaged with publication including the payment of license taxes for
the balm of clear conscience. the privilege to publish; and even injunctions against
publication. Even the closure of the business and
Its contribution to the public weal makes freedom of printing offices of certain newspapers, resulting in the
the press deserving of extra protection. Indeed, the discontinuation of their printing and publication, are

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deemed as previous restraint or censorship. 57 Any law invasive impact. Only when the challenged act has
or official that requires some form of permission to be overcome the clear and present danger rule will it pass
had before publication can be made, commits an constitutional muster,65 with the government having the
infringement of the constitutional right, and remedy can burden of overcoming the presumed
be had at the courts. unconstitutionality.

Given that deeply ensconced in our fundamental law is Unless the government can overthrow this
the hostility against all prior restraints on speech, and presumption, the content-based restraint will be struck
any act that restrains speech is presumed invalid,58 and down.66
"any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with With respect to content-based restrictions, the
furrowed brows," 59 it is important to stress not all prior government must also show the type of harm the
restraints on speech are invalid. Certain previous speech sought to be restrained would bring about—
restraints may be permitted by the Constitution, but especially the gravity and the imminence of the
determined only upon a careful evaluation of the threatened harm – otherwise the prior restraint will be
challenged act as against the appropriate test by which invalid. Prior restraint on speech based on its content
it should be measured against. cannot be justified by hypothetical fears, "but only by
showing a substantive and imminent evil that has taken
Hence, it is not enough to determine whether the the life of a reality already on ground." 67 As formulated,
challenged act constitutes some form of restraint on "the question in every case is whether the words used
freedom of speech. A distinction has to be made are used in such circumstances and are of such a nature
whether the restraint is (1) a content- as to create a clear and present danger that they will
neutral regulation, i.e., merely concerned with the bring about the substantive evils that Congress has a
incidents of the speech, or one that merely controls the right to prevent. It is a question of proximity and
time, place or manner, and under well defined degree."68
standards;60 or (2) a content-based restraint or
censorship, i.e., the restriction is based on the subject The regulation which restricts the speech content must
matter of the utterance or speech. 61 The cast of the also serve an important or substantial government
restriction determines the test by which the challenged interest, which is unrelated to the suppression of free
act is assayed with. expression. 69

When the speech restraints take the form of a content- Also, the incidental restriction on speech must be no
neutral regulation, only a substantial governmental greater than what is essential to the furtherance of that
interest is required for its validity.62 Because regulations interest. 70 A restriction that is so broad that it
of this type are not designed to suppress any particular encompasses more than what is required to satisfy the
message, they are not subject to the strictest form of governmental interest will be invalidated. 71 The
judicial scrutiny but an intermediate approach— regulation, therefore, must be reasonable and narrowly
somewhere between the mere rationality that is drawn to fit the regulatory purpose, with the least
required of any other law and the compelling interest restrictive means undertaken. 72
standard applied to content-based
restrictions.63 The test is called intermediate because Thus, when the prior restraint partakes of a content-
the Court will not merely rubberstamp the validity of a neutral regulation, it is subjected to an intermediate
law but also require that the restrictions be narrowly- review. A content-based regulation,73 however, bears a
tailored to promote an important or significant heavy presumption of invalidity and is measured against
governmental interest that is unrelated to the the clear and present danger rule. The latter will pass
suppression of expression. The intermediate approach constitutional muster only if justified by a compelling
has been formulated in this manner: reason, and the restrictions imposed are neither
overbroad nor vague. 74
A governmental regulation is sufficiently
justified if it is within the constitutional power Applying the foregoing, it is clear that the challenged
of the Government, if it furthers an important acts in the case at bar need to be subjected to the clear
or substantial governmental interest; if the and present danger rule, as they are content-based
governmental interest is unrelated to the restrictions. The acts of respondents focused solely on
suppression of free expression; and if the but one object—a specific content— fixed as these
incident restriction on alleged [freedom of were on the alleged taped conversations between the
speech & expression] is no greater than is President and a COMELEC official. Undoubtedly these
essential to the furtherance of that interest. 64 did not merely provide regulations as to the time, place
or manner of the dissemination of speech or
On the other hand, a governmental action that restricts expression.
freedom of speech or of the press based on content is
given the strictest scrutiny in light of its inherent and E.5. Dichotomy of Free Press: Print v. Broadcast Media

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Finally, comes respondents’ argument that the making a distinction as to traditional print or broadcast
challenged act is valid on the ground that broadcast media.
media enjoys free speech rights that are lesser in scope
to that of print media. We next explore and test the The distinction between broadcast and traditional print
validity of this argument, insofar as it has been invoked media was first enunciated in Eastern Broadcasting
to validate a content-based restriction on broadcast Corporation (DYRE) v. Dans,82 wherein it was held
media. that "[a]ll forms of media, whether print or broadcast,
are entitled to the broad protection of the freedom of
The regimes presently in place for each type of media speech and expression clause. The test for limitations on
differ from one other. Contrasted with the regime in freedom of expression continues to be the clear and
respect of books, newspapers, magazines and present danger rule…"83
traditional printed matter, broadcasting, film and video
have been subjected to regulatory schemes. Dans was a case filed to compel the reopening of a
radio station which had been summarily closed on
The dichotomy between print and broadcast media grounds of national security. Although the issue had
traces its origins in the United States. There, broadcast become moot and academic because the owners were
radio and television have been held to have limited First no longer interested to reopen, the Court still
Amendment protection,75 and U.S. Courts proceeded to do an analysis of the case and made
have excluded broadcast media from the application of formulations to serve as guidelines for all inferior courts
the "strict scrutiny" standard that they would otherwise and bodies exercising quasi-judicial functions.
apply to content-based restrictions.76 According to U.S. Particularly, the Court made a detailed exposition as to
Courts, the three major reasons why broadcast media what needs be considered in cases involving broadcast
stands apart from print media are: (a) the scarcity of the media. Thus:84
frequencies by which the medium operates [i.e.,
airwaves are physically limited while print medium may xxx xxx xxx
be limitless]; 77 (b) its "pervasiveness" as a medium; and
(c) its unique accessibility to children.78 Because cases (3) All forms of media, whether print or
involving broadcast media need not follow "precisely broadcast, are entitled to the broad protection
the same approach that [U.S. courts] have applied to of the freedom of speech and expression
other media," nor go "so far as to demand that such clause. The test for limitations on freedom of
regulations serve ‘compelling’ government expression continues to be the clear and
79
interests,"  they are decided on whether the present danger rule, that words are used in
"governmental restriction" is narrowly tailored to such circumstances and are of such a nature as
further a substantial governmental interest," 80 or the to create a clear and present danger that they
intermediate test. will bring about the substantive evils that the
lawmaker has a right to prevent, In
As pointed out by respondents, Philippine jurisprudence his Constitution of the Philippines  (2nd Edition,
has also echoed a differentiation in treatment between pp. 569-570) Chief Justice Enrique M. Fernando
broadcast and print media. Nevertheless, a review of cites at least nine of our decisions which apply
Philippine case law on broadcast media will show that the test. More recently, the clear and present
—as we have deviated with the American conception danger test was applied in J.B.L. Reyes in behalf
of the Bill of Rights81— we likewise did not adopt of the Anti-Bases Coalition v. Bagatsing. (4) The
en masse  the U.S. conception of free speech as it clear and present danger test, however, does
relates to broadcast media, particularly as to which test not lend itself to a simplistic and all embracing
would govern content-based prior restraints. interpretation applicable to all utterances in all
forums.
Our cases show two distinct features of this
dichotomy. First, the difference in treatment, in the Broadcasting has to be licensed. Airwave
main, is in the regulatory scheme applied to broadcast frequencies have to be allocated among
media that is not imposed on traditional print media, qualified users. A broadcast corporation cannot
and narrowly confined to unprotected speech simply appropriate a certain frequency without
(e.g.,  obscenity, pornography, seditious and inciting regard for government regulation or for the
speech), or is based on a compelling government rights of others.
interest that also has constitutional protection, such as
national security or the electoral process. All forms of communication are entitled to the
broad protection of the freedom of expression
Second, regardless of the regulatory schemes that clause. Necessarily, however, the freedom of
broadcast media is subjected to, the Court has television and radio broadcasting is somewhat
consistently held that the clear and present danger test lesser in scope than the freedom accorded to
applies to content-based restrictions on media, without newspaper and print media.

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The American Court in Federal Communications violently overthrow it. Radio and television may
Commission v. Pacifica Foundation  (438 U.S. not be used to organize a rebellion or to signal
726), confronted with a patently offensive and the start of widespread uprising. At the same
indecent regular radio program, explained why time, the people have a right to be informed.
radio broadcasting, more than other forms of Radio and television would have little reason for
communications, receives the most limited existence if broadcasts are limited to bland,
protection from the free expression clause. obsequious, or pleasantly entertaining
First, broadcast media have established a utterances. Since they are the most convenient
uniquely pervasive presence in the lives of all and popular means of disseminating varying
citizens, Material presented over the airwaves views on public issues, they also deserve special
confronts the citizen, not only in public, but in protection.
the privacy of his home. Second, broadcasting is
uniquely accessible to children. Bookstores and (6) The freedom to comment on public affairs is
motion picture theaters may be prohibited from essential to the vitality of a representative
making certain material available to children, democracy. In the 1918 case of United States v.
but the same selectivity cannot be done in radio Bustos  (37 Phil. 731) this Court was already
or television, where the listener or viewer is stressing that.
constantly tuning in and out.
The interest of society and the maintenance of
Similar considerations apply in the area of good government demand a full discussion of
national security. public affairs. Complete liberty to comment on
the conduct of public men is a scalpel in the
The broadcast media have also established a case of free speech. The sharp incision of its
uniquely pervasive presence in the lives of all probe relieves the abscesses of officialdom.
Filipinos. Newspapers and current books are Men in public life may suffer under a hostile and
found only in metropolitan areas and in the an unjust accusation; the wound can be
poblaciones of municipalities accessible to fast assuaged with the balm of a clear conscience. A
and regular transportation. Even here, there are public officer must not be too thin-skinned with
low income masses who find the cost of books, reference to comment upon his official acts.
newspapers, and magazines beyond their Only thus can the intelligence and dignity of the
humble means. Basic needs like food and individual be exalted.
shelter perforce enjoy high priorities.
(7) Broadcast stations deserve the special
On the other hand, the transistor radio is found protection given to all forms of media by the
everywhere. The television set is also becoming due process and freedom of expression clauses
universal. Their message may be simultaneously of the Constitution. [Citations omitted]
received by a national or regional audience of
listeners including the indifferent or unwilling It is interesting to note that the Court in Dans adopted
who happen to be within reach of a blaring the arguments found in U.S. jurisprudence to justify
radio or television set. The materials broadcast differentiation of treatment (i.e., the scarcity,
over the airwaves reach every person of every pervasiveness and accessibility to children), but only
age, persons of varying susceptibilities to after categorically declaring that "the test for
persuasion, persons of different I.Q.s and limitations on freedom of expression continues to be
mental capabilities, persons whose reactions to the clear and present danger rule," for all forms of
inflammatory or offensive speech would be media, whether print or broadcast. Indeed, a close
difficult to monitor or predict. The impact of the reading of the above-quoted provisions would show
vibrant speech is forceful and immediate. that the differentiation that the Court in Dans referred
Unlike readers of the printed work, the radio to was narrowly restricted to what is otherwise deemed
audience has lesser opportunity to cogitate as "unprotected speech" (e.g., obscenity, national
analyze, and reject the utterance. security, seditious and inciting speech), or to validate a
licensing or regulatory scheme necessary to allocate the
(5) The clear and present danger test, therefore, limited broadcast frequencies, which is absent in print
must take the particular circumstances of media. Thus, when this Court declared in Dans that the
broadcast media into account. The supervision freedom given to broadcast media was "somewhat
of radio stations-whether by government or lesser in scope than the freedom accorded to
through self-regulation by the industry itself newspaper and print media," it was not as to what test
calls for thoughtful, intelligent and sophisticated should be applied, but the context by which
handling. requirements of licensing, allocation of airwaves, and
application of norms to unprotected speech. 85
The government has a right to be protected
against broadcasts which incite the listeners to

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In the same year that the Dans case was decided, it was The reasons behind treating broadcast and
reiterated in Gonzales v. Katigbak,86 that the test to films differently from the print media differ in a
determine free expression challenges was the clear and number of respects, but have a common
present danger, again without distinguishing the historical basis. The stricter system of controls
media.87 Katigbak, strictly speaking, does not treat of seems to have been adopted in answer to the
broadcast media but motion pictures. Although the view that owing to their particular impact on
issue involved obscenity standards as applied to audiences, films, videos and broadcasting
movies,88 the Court concluded its decision with the require a system of prior restraints, whereas it
following obiter dictum that a less liberal approach is now accepted that books and other printed
would be used to resolve obscenity issues in television media do not. These media are viewed as
as opposed to motion pictures: beneficial to the public in a number of respects,
but are also seen as possible sources of harm.93
All that remains to be said is that the ruling is to
be limited to the concept of obscenity Parenthetically, these justifications are now the subject
applicable to motion pictures. It is the of debate. Historically, the scarcity of frequencies was
consensus of this Court that where television is thought to provide a rationale. However, cable and
concerned, a less liberal approach calls for satellite television have enormously increased the
observance. This is so because unlike motion number of actual and potential channels. Digital
pictures where the patrons have to pay their technology will further increase the number of channels
way, television reaches every home where available. But still, the argument persists that
there is a set. Children then will likely be among broadcasting is the most influential means of
the avid viewers of the programs therein communication, since it comes into the home, and so
shown…..It cannot be denied though that the much time is spent watching television. Since it has a
State as parens patriae is called upon to unique impact on people and affects children in a way
manifest an attitude of caring for the welfare of that the print media normally does not, that regulation
the young. is said to be necessary in order to preserve pluralism. It
has been argued further that a significant main threat
More recently, in resolving a case involving the conduct to free expression—in terms of diversity—comes not
of exit polls and dissemination of the results by a from government, but from private corporate bodies.
broadcast company, we reiterated that the clear and These developments show a need for a reexamination
present danger rule is the test we unquestionably of the traditional notions of the scope and extent of
adhere to issues that involve freedoms of speech and of broadcast media regulation. 94
the press.89
The emergence of digital technology -- which has led to
This is not to suggest, however, that the clear and the convergence of broadcasting, telecommunications
present danger rule has been applied to all cases that and the computer industry -- has likewise led to the
involve the broadcast media. The rule applies to all question of whether the regulatory model for
media, including broadcast, but only when the broadcasting will continue to be appropriate in the
challenged act is a content-based regulation that converged environment.95 Internet, for example,
infringes on free speech, expression and the press. remains largely unregulated, yet the Internet and the
Indeed, in Osmena v. COMELEC,90 which also involved broadcast media share similarities, 96 and the rationales
broadcast media, the Court refused to apply the clear used to support broadcast regulation apply equally to
and present danger rule to a COMELEC regulation of the Internet.97 Thus, it has been argued that courts,
time and manner of advertising of political legislative bodies and the government agencies
advertisements because the challenged restriction was regulating media must agree to regulate both, regulate
content-neutral.91 And in a case involving due process neither or develop a new regulatory framework and
and equal protection issues, the Court rationale to justify the differential treatment. 98
in Telecommunications and Broadcast Attorneys of the
Philippines v. COMELEC92 treated a restriction imposed F. The Case At Bar
on a broadcast media as a reasonable condition for the
grant of the media’s franchise, without going into which Having settled the applicable standard to content-based
test would apply. restrictions on broadcast media, let us go to its
application to the case at bar. To recapitulate, a
That broadcast media is subject to a regulatory regime governmental action that restricts freedom of speech or
absent in print media is observed also in other of the press based on content is given the strictest
jurisdictions, where the statutory regimes in place over scrutiny, with the government having the burden of
broadcast media include elements of licensing, overcoming the presumed unconstitutionality by
regulation by administrative bodies, and censorship. As the clear and present danger rule. This rule applies
explained by a British author: equally to all kinds of media, including broadcast
media.

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This outlines the procedural map to follow in cases like wiretapping law clearly endangers the national security
the one at bar as it spells out the following: (a) the test; of the State.
(b) the presumption; (c) the burden of proof; (d) the
party to discharge the burden; and (e) the quantum of This is not all the faultline in the stance of the
evidence necessary. On the basis of the records of the respondents. We slide to the issue of whether the mere
case at bar, respondents who have the burden to show press statements of the Secretary of Justice and of the
that these acts do not abridge freedom of speech and of NTC in question constitute a form of content-based
the press failed to hurdle the clear and present danger prior restraint that has transgressed the Constitution. In
test. It appears that the great evil which government resolving this issue, we hold that it is not decisive that
wants to prevent is the airing of a tape recording in the press statements made by respondents were not
alleged violation of the anti-wiretapping law. The reduced in or followed up with formal orders or
records of the case at bar, however, are confused and circulars. It is sufficient that the press statements were
confusing, and respondents’ evidence falls short of made by respondents while in the exercise of their
satisfying the clear and present danger test. Firstly, the official functions. Undoubtedly, respondent Gonzales
various statements of the Press Secretary obfuscate the made his statements as Secretary of Justice, while the
identity of the voices in the tape NTC issued its statement as the regulatory body of
recording. Secondly, the integrity of the taped media. Any act done, such as a speech uttered, for and
conversation is also suspect. The Press Secretary on behalf of the government in an official capacity is
showed to the public two versions, one supposed to be covered by the rule on prior restraint. The concept of
a "complete" version and the other, an "altered" an "act" does not limit itself to acts already converted
version. Thirdly, the evidence of the respondents on the to a formal order or official circular. Otherwise, the
who’s and the how’s of the wiretapping act is non formalization of an act into an official order or
ambivalent, especially considering the tape’s different circular will result in the easy circumvention of the
versions. The identity of the wire-tappers, the manner prohibition on prior restraint. The press statements at
of its commission and other related and relevant proofs bar are acts that should be struck down as they
are some of the invisibles of this case. Fourthly, given constitute impermissible forms of prior restraints on the
all these unsettled facets of the tape, it is even arguable right to free speech and press.
whether its airing would violate the anti-wiretapping
law. There is enough evidence of chilling effect of the
complained acts on record. The warnings given to
We rule that not every violation of a law will justify media came from no less the NTC, a regulatory agency
straitjacketing the exercise of freedom of speech and that can cancel the Certificate of Authority of the radio
of the press. Our laws are of different kinds and and broadcast media. They also came from the
doubtless, some of them provide norms of conduct Secretary of Justice, the alter ego of the Executive, who
which even if violated have only an adverse effect on a wields the awesome power to prosecute those
person’s private comfort but does not endanger perceived to be violating the laws of the land. After the
national security. There are laws of great significance warnings, the KBP inexplicably joined the NTC in issuing
but their violation, by itself and without more, cannot an ambivalent Joint Press Statement. After the
support suppression of free speech and free press. In warnings, petitioner Chavez was left alone to fight this
fine, violation of law is just a factor, a vital one to be battle for freedom of speech and of the press. This
sure, which should be weighed in adjudging whether to silence on the sidelines on the part of some media
restrain freedom of speech and of the press. practitioners is too deafening to be the subject of
The totality of the injurious effects of the violation to misinterpretation.
private and public interest must be calibrated in light of
the preferred status accorded by the Constitution and The constitutional imperative for us to strike down
by related international covenants protecting freedom unconstitutional acts should always be exercised with
of speech and of the press. In calling for a careful and care and in light of the distinct facts of each case. For
calibrated measurement of the circumference of all there are no hard and fast rules when it comes to
these factors to determine compliance with the clear slippery constitutional questions, and the limits and
and present danger test, the Court should not be construct of relative freedoms are never set in stone.
misinterpreted as devaluing violations of law. By all Issues revolving on their construct must be decided on a
means, violations of law should be vigorously case to case basis, always based on the peculiar shapes
prosecuted by the State for they breed their own evil and shadows of each case. But in cases where the
consequence. But to repeat, the need to prevent their challenged acts are patent invasions of a
violation cannot per se trump the exercise of free constitutionally protected right, we should be swift in
speech and free press, a preferred right whose breach striking them down as nullities per se. A blow too soon
can lead to greater evils. For this failure of the struck for freedom is preferred than a blow too late.
respondents alone to offer proof to satisfy the clear and
present danger test, the Court has no option but to In VIEW WHEREOF, the petition is GRANTED. The writs
uphold the exercise of free speech and free press. There of certiorari and prohibition are hereby issued,
is no showing that the feared violation of the anti- nullifying the official statements made by respondents

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on June 8, and 11, 2005 warning the media on airing the
alleged wiretapped conversation between the President
and other personalities, for constituting
unconstitutional prior restraint on the exercise of
freedom of speech and of the press

SO ORDERED.

REYNATO S. PUNO
Chief Justice

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